7.  The applicant, a Russian national of Chechen origin, was born in 1980 and lives in Graz.
8.  The applicant arrived in Austria with his family on 25 July 2003 and lodged an asylum request on the same day.
9.  The applicant was raised in Urus-Martan and in the Naur District in Chechnya and went to school there for seven years. He did not have any vocational training, but worked subsequently in different jobs.
10.  The applicant’s wife was born in Grozny and spent all her life in Chechnya, where she married the applicant in 2002 in a religious ceremony.
11.  With regard to his reasons to apply for asylum, the applicant claimed that he had supported the Chechen fighters during the first war from 1994 until 1996. Because he did not feel that his support had been sufficiently acknowledged, he did not take part in the second war in Chechnya. In summer 2003, mercenary soldiers came looking for him during a “cleaning operation” based on a file about the applicant that had been created after the first war. When they did not find him at home, the soldiers beat up the applicant’s father. Later on, the family’s house was burned down. Thereupon, the applicant’s father advised the applicant and his wife to leave Chechnya and the Russian Federation.
12.  On 24 November 2004, the Federal Asylum Office (Bundesasylamt) dismissed the applicant’s asylum request and declared the applicant’s expulsion to the Russian Federation permissible.
13.  The applicant appealed. On 22 July 2005, the Independent Federal Asylum Panel (Unabhängiger Bundesasylsenat) allowed the applicant’s appeal and awarded him asylum status. Referring to relevant country reports it found that the security situation in Chechnya had deteriorated from May 2004 onwards and that numerous killings and unexplained disappearances occurred on a regular basis, many within the context of “cleaning operations”. It further found the humanitarian situation in Chechnya to be critical. Finally, it stated that there were no domestic alternatives, due to systematic hindrances encountered by Chechens with Russian authorities throughout the country and also due to difficulties in obtaining registration and settling in other parts of Russia. It found the applicant’s statements to be credible and sufficiently substantiated and concluded that the applicant was at a real risk of being subjected to ill-treatment if he returned to the Russian Federation.
14.  On 27 April 2007, the Independent Federal Asylum Panel also granted asylum to the applicant’s wife. It reasoned that since the applicant was wanted in Russia because of his alleged hostility towards the Russian authorities, his wife was also at real risk of ill-treatment if she returned to Russia. It also noted that the applicant had been awarded the status of a recognised refugee and that the family would not be able to establish their life together in another country. Ruling out a domestic alternative (moving to live elsewhere in Russia), it concluded that the applicant’s wife therefore should be awarded asylum status in application of the principle in dubio pro fugitivo.
15.  The applicant’s daughter, who was born in 2004, was granted asylum on 15 May 2007; and his son, born in 2007, was granted asylum on 21 June 2007.
16.  On 28 April 2005, the Graz District Court (Bezirksgericht Graz) convicted the applicant of attempted theft and sentenced him to two weeks’ imprisonment, suspended, and placed him on probation.
17.  On 17 August 2006, the Leoben Regional Court (Landesgericht Leoben) convicted the applicant of attempted resistance to public authority, aggravated damage to property and aggravated bodily harm, and sentenced him to eight months’ imprisonment, six of which were suspended, and placed him on probation for three years.
18.  On 10 March 2008, the Graz Regional Court (Landesgericht Graz) convicted the applicant of partly attempted and partly actual aggravated bodily harm, and sentenced him to twelve months’ imprisonment, while quashing the probation order in the previous sentence. The applicant was found to have hit a prostitute on the head with an empty bottle because she had not told him that she was suffering from a sexually transmitted disease.
19.  The applicant served his sentences and was released again in August 2009. Since then, the applicant has been living with his wife and two children in an apartment in Graz.
20.  The Federal Asylum Office initiated proceedings to lift the applicant’s asylum status. In the interview conducted in the course of the proceedings, the applicant stated that he could not return to Chechnya because of his past and that he was convinced that he would be killed if he returned. He claimed that many people had returned to Chechnya after being informed that they would no longer be in danger of persecution in Chechnya, but had then disappeared or been killed by the security service of the Chechen president. He could not prove this, since the people concerned were dead. Furthermore, the applicant’s father had told him that he should not return to Chechnya and that he was still at risk of persecution.
21.  On 2 October 2008 the Federal Asylum Office lifted the applicant’s asylum status and ordered his expulsion to the Russian Federation. Referring to section 7 of the 2005 Asylum Act, it noted that asylum status could be lifted after conviction by a domestic court of a particularly serious offence. It further referred to the four criteria developed by the Administrative Court (Verwaltungsgerichtshof) that were as follows: firstly, the conviction must be for a particularly serious crime, such as murder, rape, child abuse, arson, armed robbery, drug trafficking, or similar crimes. Secondly, it must be a final conviction. Furthermore, the offence committed must be especially dangerous (gemeingefährlich); and finally, the public interest in lifting the asylum status must outweigh the applicant’s interest in the protection provided by the asylum status. The Federal Asylum Office continued by finding that in practice, offences against physical integrity and life would be qualified as “particularly serious crimes”. It also made reference to the United Nations Convention 1951 relating to the Status of Refugees that requested a balancing of the interests involved. In conclusion, it stated that the applicant had been convicted more than once of offences against physical integrity, and that he had reoffended after his first conviction.
22.  It further found that the security situation in Chechnya had improved since the applicant had been awarded asylum status, and came to the conclusion that the applicant would not be subject to a real risk of ill-treatment contrary to Article 3 of the Convention upon a return to the Russian Federation. As regards the applicant’s rights under Article 8 of the Convention, the Federal Asylum Office stated that the applicant had not taken any serious steps towards integration into Austrian society since the award of asylum status. He had for example only started learning German in 2007, when he had already been in the country for four years. With regard to the applicant’s family, it questioned its entitlement to protection, in the context of the violent offences the applicant had committed in the past. It referred also to the applicant’s family still living in Chechnya, namely his parents and six siblings, with whom the applicant maintained regular telephone contact and who constituted a clear link between the applicant and Chechnya, and concluded that the public interest, in view of the applicant’s criminal record, outweighed his interests in respect of his family life.
23.  The applicant appealed against that decision. On 2 June 2009 the Asylum Court (Asylgerichtshof) held an oral hearing, at which the applicant repeated that he could not return to Chechnya. In general, his family had no problems with the security services there. His father had been visited by a member of the FSB two weeks after the applicant had left the country and had been told that his family should not expect any problems with the authorities, as they were only looking for the applicant. The applicant’s wife was also interviewed. Asked about her relationship with the applicant, she confirmed that she visited the applicant regularly in detention and that they would naturally continue to live together as a family as soon as the applicant was released from prison.
24.  On 24 August 2009 the Asylum Court dismissed the applicant’s appeal as unfounded.
25.  As regards the general security and political situation in Chechnya, and referring to relevant country reports, it found that military activities had decreased significantly in recent years and that the second war had ended officially on 16 April 2009. However, a country report by the German Federal Foreign Office dated 22 November 2008 showed that there were still massive human rights violations occurring in Chechnya under Ramsan Kadyrov’s dictatorship. Furthermore, the reports generally conceded that the civilian population was still the victim of “cleaning” operations, but also that unexplained disappearances had decreased since 2007. The Asylum Court considered torture still to be a problem in the region. Referring to reports of the Office of the United Nations High Commissioner for Refugees, it found people particularly targeted for persecution to be (former) rebels, their relatives, political adversaries of Ramsan Kadyrov, human rights activists, and people who had lodged complaints with international organisations. It further stated that the Office of the United Nations High Commissioner for Refugees still dismissed any domestic opportunity for Chechens in the Russian Federation. However, it also referred to a Swiss practice that declared a domestic alternative elsewhere in the Russian Federation acceptable for Chechens.
26.  In its legal reasoning the Asylum Court stated that asylum status could be lifted if the person was convicted by a domestic court of a particularly serious offence, if he therefore presented a danger to the community, and if the public interest outweighed the person’s private interests. It referred to the Administrative Court’s illustration of German practice, which is to qualify a particularly serious offence as one with a sentence of at least three years’ imprisonment, but called it a “flexible system”. With regard to the applicant, the Asylum Court found that his repeated offences were of a very serious and violent nature. Finally, it emphasised the applicant’s lack of integration in Austria and the poor prospects for his future development.
27.  The Asylum Court continued by examining the possibility of subsidiary protection pursuant to section 8 of the 2005 Asylum Act. In that context it found that the civil war in Chechnya had ended and that there was no general risk of treatment contrary to Article 3 of the Convention in the event of expulsion to the Russian Federation. Further referring to the applicant’s “minor” role in the first war, the stable life situation of his family in Chechnya and his good prospects of work in Chechnya, the Asylum Court dismissed a real and individual risk of persecution within the meaning of Article 3 of the Convention in relation to the applicant. Finally, examining the applicant’s rights under Article 8 of the Convention with regard to his expulsion, as foreseen in section 10 § 2(2) of the 2005 Asylum Act, it found that the applicant still had strong ties with Chechnya, and that his children were of a young and adaptable age.
28.  On 1 December 2009, the Constitutional Court (Verfassungs­gerichtshof) dismissed the applicant’s application for legal aid to lodge a complaint against the appeal decision of the Asylum Court, due to lack of prospects of success. The applicant nevertheless lodged a complaint and on 11 March 2010, the Constitutional Court refused to deal with the complaint.
29.  That decision was served on the applicant’s counsel on 16 March 2010.
30.  On 16 September 2010 the applicant lodged a complaint with the European Court of Human Rights and requested the application of an interim measure pursuant to Rule 39 of the Rules of Court.
31.  On 23 September 2010, the Court applied the interim measure under Rule 39 and requested the Austrian Government to stay the applicant’s expulsion to the Russian Federation until further notice.
32.  On 7 September 2010 the Graz Federal Police Authority (Bundes­polizeidirektion Graz) issued an exclusion order against the applicant for a period of ten years. Complaint proceedings are pending with the Administrative Court (Verwaltungsgerichtshof).